There’s not much question that Marquis Hairston was a bad guy.  Over a four-week period during the fall of 2005, he and some pals conducted three home invasion in the Germantown section of Columbus, terrorizing the inhabitants at gunpoint.  His spree started just seven days after he’d been released from prison for another crime.  Midway through his trial, he changed his plea to guilty on eleven first-degree and three third-degree felony counts, plus three three-year gun specs.

If there was any lingering doubt over the mess that is Ohio’s sentencing laws in the wake of Foster, it was dispelled during the oral argument in the Ohio Supreme Court last week on Marston’s resulting 134-year sentence.  That’s right, 134 years.  The defense had argued that this violated the 8th Amendment’s cruel and unusual punishment clause.  That might be so, except there’s case law that says you only look at the sentence for a particular crime, not the composite sentence.  Plus, as Justice O’Connor pointed out, Hairston had committed two violent felonies prior to this one.  In California, he would have gotten a life sentence based on their three strikes law.  And the US Supreme Court had upheld that law against a constitutional challenge.

The sentencing reforms enacted back in 1996 basically struck a bargain:  in return for more power flowing to the judiciary on sentencing (mainly by abolition of parole), that power would be subject to “guided” discretion:  judges were to consider various factors, and there were limitations placed on their power to impose more-than-minimum, maximum, or consecutive sentences.  The first part of that bargain is intact, but Foster eliminated the second part of it.  I started doing this blog about three months after Foster came down.  In the time since, I can think of two cases I’ve seen where a sentence was reversed.  And in one of them, it was reversed because the court gave probation instead of prison time.  Judges now essentially have unfettered discretion to impose sentences, and the Supreme Court will likely put an exclamation point on that when it comes down with its decision in Hairston’s case a few months from now. 

Marques Hairston has been given the functional equivalent of life imprisonment without parole.  Shock probation and parole, both of which would have shortened his sentence before the 1996 sentencing “reforms,” are no longer available.  (Judicial release, the successor to shock probation, isn’t available to a person serving a sentence of more than ten years.)  In fact, back then, Hairston couldn’t have gotten more than 15 years in prison; that was the maximum cumulative sentence which could have been imposed for the crimes he committed.

Not that I’m shedding any tears about that.  The fact that the Marques Hairston show is not going to be coming to a neighborhood near me is just fine.  This was hardly an isolated incident of bad judgment.  In addition to the two previous convictions, Hairston’s post-release crime spree spread beyond Franklin County; in oral argument it came out that he’s also doing 59 years for another batch of offenses out of Scioto County.  Even given his somewhat tender age of 24, whatever chance there was of redeeming Hairston, that ship sailed a while ago.

Still, from my vantage point of skimming through the cases each week, it appears that harsher sentencing is not an isolated occurrence.  I frequently see double-digit sentences handed down in cases which, here in Cuyahoga County, would result in a prison term half or even less of that. 

The loser in all that isn’t just the concept of consistency of sentencing, which was at the heart of the 1996 reforms:  the idea that similar sentences would be handed down for similar crimes.  The taxpayers of Ohio are going to be paying the tab for Marques Hairston’s incarceration long beyond the age when he’s a threat to anyone.  Given the proposed passage of a three strikes law here in Ohio, and the contemplated increase in powder cocaine penalties, it’s likely that a lot more people are going to be sent to prison in the coming years, and are going to be staying there for longer periods.  Ohio’s spending for prisons increased five times faster over the past twenty years than its spending for education.  It doesn’t look like that’s going to change anytime soon.

Catching up with some stuff…

Let’s hope Judge Kline doesn’t read this.  Last week I did a post on the Ohio Supreme Court’s decision in State v. Crager, where it upheld the admission of DNA testimony by an analyst, other than the one who’d performed the actual tests, against a Crawford challenge.  Central to the Court’s holding was the belief that the integrity of BCI was such that who actually performed the test didn’t matter, a view embodied by Judge Kline in his concurrence that “the prosecutor asked BCI for the DNA analysis through glasses of justice, not glasses of conviction.”  Then there’s this story from the Jacksonville Times-Union:

Only weeks before Chad Heins’ murder trial in 1996, a Jacksonville prosecutor sent a memo asking a state crime lab supervisor to downplay findings that stray hairs found on the victim’s body came from an unknown person.

“I need to structure your testimony carefully so as to convince the jury that the unknown hairs are insignificant,” Assistant State Attorney Stephen Bledsoe wrote in a letter recently obtained by the Times-Union.

Heins spent 11 years in prison before being exonerated by DNA evidence.  (Hat tip to CrimProf Blog.)

Truth in advertising.  The legal community was abuzz last year by this ad for a three-woman divorce firm in Chicago:

Well, it turns out that the model for the picture on the left was none other than Senior Partner Corri D. Fetman, who also appeared in a photo spread in Playboy.  In fact, Ms. Fetman now writes a column for the magazine, entitled “Lawyer of Love,” in which she expresses a view of marriage so jaundiced it makes the average divorce lawyer sound like Mr. Rogers.  Also, at the risk of being unchivalrous, a comparison of Ms. Fetman’s picture for the Playboy column with the one on the firm’s website confirms both the magic the magazine’s photographers can work and the wisdom of the decision to focus the ad’s picture on Ms. Fetman’s more obvious assets.

Then again, that just might be my bitterness coming to the fore.  I’m seriously considering suing the firm for using my picture as the male model in the ad without my permission.

Almost a year ago, I highlighted the case of Burdge v. Supervalu Holdings.  Burdge had shopped at one of the defendant’s stores, paid by credit card, and received a receipt which — the horror, the horror — contained the card’s expiration date, in violation of Ohio’s “credit card truncation” statute.  As I’d mentioned, Burdge was so outraged by this that he shopped at the same store a dozen more times, then sued them under the statute.

Turns out that Burdge and his lawyer had pulled the same scheme at numerous other stores.  The problem was that the statute required proof of actual damages, and Burdge had none.  The trial court in Supervalu threw out the lawsuit, just as courts had done in the previous cases.  This time, though, the 1st District also hit up Burdge and the lawyer for about $3,000 in sanctions, finding that the lawsuit and appeal were frivolous. 

In fact, as I also mentioned at the time, the apparent intent of the lawsuits was to use the statute to get retailers to pony up some money in order to avoid litigation.  In another case, a movie theatre had agreed to settle a case with the pair for $2,500; when the settlement check arrived a day late, the lawyer claimed the settlement was off, and demanded $5,000.  The defendant told the lawyer to get lost, the plaintiff sued, and the court threw it out, which was affirmed by the appellate court.  

Well, it appears that the lawyer has gotten himself a new client, as I’d suggested, but, as the 5th District’s decision last week in Stromp v. Fifth Third Bank indicates, is sticking to the same routine.  This time, it was a lawsuit against a tavern.  The parties agreed to settle for $5,500, with payment due by May 30, 2006.  The plaintiffs didn’t sign the agreement until May 31, but when payment wasn’t made until a week later, the lawyer said the settlement was off, and continued the litigation. 

The plaintiffs even continued it after the court ruled that the settlement was valid and should be enforced.  The trial court didn’t cotton to that, and ordered an award of over $10,000 in sanctions against the plaintiffs and their lawyer for pursuing the litigation after the settlement was ordered into effect.  The court of appeals affirmed.

Back in the Supervalu case, the concurring opinion noted

What is particularly disturbing about the contrived nature of this frivolous action, as discussed above, is that. . . an attorney, licensed to practice in this state and sworn as an Officer of the Court, would facilitate this type of exploitive litigation to the detriment of the defendant, the court system, and the practice of law in general.

Well, make mine a double.  Every time one of us files an idiot claim like this based upon some hypertechnical regulatory statute, or sues a school district because little Susie didn’t make the cheerleading squad, or comes up with some absurd theory of relief like “reckless and negligent use of a bathtub,” it makes the rest of us look like a bunch of cheap whores.  And, because it happens so damned often anymore, the public doesn’t need much convincing on that score. 

If you went to law school so that you could file bullshit cases like these, you went for the wrong reason.  And if the courts decide to start hitting you up in the pocketbook for it, well, sooner or later maybe you’ll learn your lesson from it.

Speaking of a updates, I’ll be doing a one-hour seminar on Thursday night for the Cuyahoga Criminal Defense Lawyers Association, on major case developments in criminal law over the past year.  It’s at 6:00 PM at John Q’s, so drop by if you’d like.

On to the cases.  The big news out of Washington is that in addition to hearing oral argument in the lethal injection and voter fraud cases, the Court granted certiorari in a California case involving forfeiture under Crawford v. Washington.  What’s that?  Crawford, as you know, bars testimonial statements, but the Court has indicated that a defendant may have forfeited his confrontation rights if he was responsible for the declarant not being available.  (For example, by killing the witness to keep her from testifying.)  There have been no Ohio cases on this yet, but it’s cropped up elsewhere, and it’s certain to produce a further refinement of Crawford.  If you’re following Parker v. DC, the big gun rights case pending before the Court, you can find all the amicus briefs here, including one from “Professors of linguistics.” 

Down in Columbus, the Supreme Court affirmed a death penalty; the noteworthy aspect of the decision was the discussion of merger of aggravated robbery and kidnapping charges; I’ll have more on this subject later this week.  In fact, three judges dissented on that point, saying that the offenses should have merged.  Given that this had no effect whatsoever on the death sentence, I can’t imagine a more irrelevant, how-many-angels-can-fit-on-the-head-of-a-pin discussion.

On to the courts of appeals… (keep reading…)

Last year, 134 people were murdered in the City of Cleveland.  That was the highest number in thirteen years.  So yesterday, Mayor Frank “Rip Van Winkle” Jackson woke up long enough to announce a new policy to combat that.  As this article notes, the centerpiece to the policy is “to unleash aggressive police officers for daily gun sweeps and restart the gang unit as ways to combat crime.”  (The gang unit was disbanded in 2004 after extensive police layoffs.)

The wisdom of the “aggressive” policy on guns is subject to some debate, as a more extensive article details.  First, even Jackson acknowledges that the policy will lead to more police-citizen confrontations, and quite possibly shootouts.  More significantly, the policy may run into some problems under search and seizure law.  The article describes how the policy will work: 

Undercover police and federal agents will do nearly daily stings, observing people in high-crime areas.

If they suspect the people are carrying guns, the undercover officers will call in patrol officers who will approach the suspects and ask if they are carrying weapons.

The decision as to which particular suspect to stop is “based on training and the characteristics of people carrying guns,” and it’s questionable whether a generalized standard will support a specific stop. 

That doesn’t mean those cases are going to get thrown out on 4th Amendment grounds.  First, “stop” is a misnomer in this context; we’re really talking about a “consensual encounter.”  As the courts have noted, if you’re walking on a street, a policeman is perfectly free to come up and ask you a question, just as you are perfectly free to walk away without answering it:  that kind of encounter doesn’t implicate the 4th Amendment.  Of course, that’s nice in theory, but in practice, the state is counting on the fact that few people, when encountered by a couple of police officers asking if he’s armed, will have the temerity to say, “none of your business,” and keep on walking.  Once the suspect stops and engages the police in conversation, you easily get into issues of consent, and it’s not exceedingly difficult to wind up with a good search and arrest under those circumstances. 

Of course, that’s assuming that an arrest is the intended outcome here.  It may not be.  One of the problems with the exclusionary rule is that it’s based on the idea that the police will be deterred from violating the 4th Amendment if they know that the evidence they seize can’t be used in the prosecution.  That’s well and good, but the rule becomes irrelevant where the police interest in prosecution is secondary, if it exists at all. 

There’s reason to believe that’s the case here.  The policy is similar to the one used in New York City under Rudy Giuliani’s first term as mayor, and it was strikingly successful in reducing crime.  Not because of increased arrests, though; later studies showed that while stop and frisks increased substantially, only one in nine led to even an arrest, let alone a successful prosecution.  The point wasn’t arrests and prosecution, though:  the point was to spread the message that the cops were stopping people and looking for guns, and the result was that people stopped carrying guns.  It’s not unlikely that the same thing will happen here.

Of course, there’s also the racial aspect.  Despite protestations by police officials that training in “the characteristics of people carrying guns” has ”nothing to do with profiling or the color of people’s skins,” it’s a little difficult to imagine that a particular person’s status as a young black male won’t enter into the calculus of whether to initiate an encounter.

That may not be a problem either, though.  A long time ago I had a case involving a couple of black kids, 18 and 19, who were stopped and rousted by the police youth squad, a precursor to the gang unit.  My clients were part of a larger group of about eight or nine kids who happened to be standing around a street corner.  There were no drugs or guns involved; my clients wound up being charged with resisting arrest and disorderly conduct.  Both of them were good kids; neither had any prior involvement with the police.

There were six blacks on the jury, and I had a field day in trial.  The cops testified that their policy was essentially to stop and break up any group of three or more young black males, and I summoned all the righteous fury that my bleeding heart white liberal mind could muster in closing argument, condemning the explicit racism of the policy and the loss of liberty that was its result.  I even threw in some references to South Africa’s apartheid. 

The jury returned a guilty verdict.  I went back and talked with them; much to my surprise, it was the blacks on the jury, all of them older than 40, who were the prime movers for conviction.  I asked them why, and they mumbled responses which indicated they were troubled by their verdict, too.  But you could tell that they were just so tired, tired of looking out their windows and seeing the gangboys selling drugs on their street corner, tired of being afraid to send their kids or grandkids to the store up the street, tired of being woken by gunshots in the night.

Those of us who practice criminal law, and who frequently deal with criminal rights issues, tend to lose sight of the fact that there’s an inevitable tension between order and liberty, and a need to balance the two.  Where that balance is to be struck is the hard part.  There are a lot of tired people, black and white, in Cleveland right now.  If this policy reduces the violence, the sacrifice of some measure of 4th Amendment freedoms is going to be regarded as worth the cost.  That may be hard for some of us to accept, but we might feel differently if the gangboys were on our street corners. 

If you happen to need advice on how to prepare a jury in voir dire for the fact that you’re client’s a transvestite, I’m the go-to guy there.

I spent the last two days trying a crackpipe case involving a 46-year-old transvestite — we’ll call her Jamie — with twenty-seven prior convictions, almost all of them for drugs.  Check that, twenty-six prior convictions.  She had twenty-seven prior cases, but on one of them, about seven years ago, she’d gone to trial and been acquitted.  So she was figuring to catch lightning in a bottle again.  I told her I’d talk to the judge about putting her on probation if she pled, but she was having none of it.  She didn’t have a crackpipe, she said, and she wasn’t going to plead to anything.

By the way, when I say “transvestite,” on those twenty-six priors, she went to prison seven times.  On one of them, they sent her to the women’s prison.

Like most lawyers, I use voir dire to condition jurors:  to inculcate them in certain principles, like reasonable doubt and burden of proof, and to prepare them for certain facts that are going to come out during the trial which are particularly adverse to my client.  Needless to say, this one presented some challenges in that regard.  I’d suggested to the judge that my task might be easier if we used some background theme music during the voir dire — my preferences would have been Aerosmith’s Dude Looks Like a Lady or Lou Reed’s Walk on the Wild Side — but he nixed that. 

It went well, for a while, anyway.  My client was going to testify, so I did a bit of reverse psychology on self-incrimination, explaining her 5th Amendment rights to the jury, how she didn’t have to testify and how the judge was going to instruct them that they couldn’t take that into consideration, and getting the jurors to promise me that they wouldn’t hold it against her… and then, “Well, Mrs. Smith, let me tell you right now, I’m going to promise you my client will take the stand.  She wants to tell you her side of the story.”  That got them pretty charged up, but it was downhill after that.  When I explained that, as a result of her taking the stand, it would come out that she had eleven felony convictions in the last ten years, and certainly they could promise me that they wouldn’t hold that against her, there were several jurors who were giving me the “you’re kidding, right?” looks.  And when I said, “You’re probably wondering why the judge referred to my client as a he and I’m referring to her as a she,” several starting looking around for the hidden cameras, certain that Ashton Kutcher was going to pop out and tell them they’d just been punk’d.

The trial itself was a riot.  The facts were pretty simple:  the vice squad was on a prostitution detail, and according to the police, Jamie waved down one of the decoys, and offered to perform fellatio for ten dollars.  When the takedown cars showed up, Jamie reached under her miniskirt and pulled an object out of the crotch of her panties, then got out of the car.  The cop waiting outside the car asked her what was in her hand, and Jamie opened it and said, “Nothing.”  There was the clink of glass hitting concrete, and the cop shined her flashlight on the ground, and lo and behold, there was a crackpipe a foot or so away from Jamie.

Jamie’s story corresponded to that, up to the part about the negotations over the sex act.  But she steadfastly maintained that she had nothing to do with a crack pipe, having been clean of drugs since 2005.  Her denials reached a crescendo when she learned forward in the witness chair, locked her eyes on the jury, and declared, “I haven’t had a stem in my mouth in two years.”  I am not making this up.  I looked up at the judge, who was just about falling out of his chair.  The other high point of the trial occurred during her cross-examination, when the prosecutor referred to a “hand job.”  In her best drag queen voice, Jamie patiently corrected him:  “It’s a head job, not a hand job.”

After that, it was instructions and closing, and then back to wait for the verdict, which, the judge opined, shouldn’t be more than five minutes in the offing.  Given the nature of the case, the conversation among the lawyers, the judge, and the cops quickly degenerated to the level of the locker-room.  The judge suggested that Jamie’s distinctions between hand jobs and head jobs should prove a useful subject of discussion for the recently-married prosecutor and his wife at dinner that night.  The other officers gave the decoy cop a good ribbing; when Jamie had first entered his vehicle, she’d given him a kiss on the cheek, and the other officers swore he didn’t wash the spot for two weeks.  I chimed in by telling him that maybe his fellow officers wouldn’t have given him such a hard time if he hadn’t sent flowers to my client when she was in jail.

I’d set the over-under at forty-five minutes for a verdict, but it took almost an hour and half.  We trudged back into the courtroom for the inevitable.  And the inevitable occurred, as it inevitably does; Jamie didn’t even flinch when the judge said “guilty.” 

The judge referred Jamie for a presentence report, and didn’t remand her, but warned her that if she didn’t show up for sentencing she’d get the maximum.  The judge is a good guy, so I’m not sure what he’s going to do.  While we were waiting for the verdict, he mentioned that if he put her on paper, she’d just be back with another case in another month or so.  Of course, if he ships her, the taxpayers of Ohio get to pay a couple grand a month to defer that next case for the length of her prison stay.

On the elevator ride down to the probation department, Jamie asked me what I thought was going to happen when we returned for the sentencing.  As a lawyer, I’m always relieved when the rare occasion occurs that a client asks me a question of which I’m absolutely sure of the answer.  As I was here.  I looked at Jamie and said, “Nothing that hasn’t happened to you before.”

She laughed.

Portage County Judge John Plough made news last year by holding Brian Jones, a public defender, in contempt for refusing to go forward with a trial in a misdemeanor assault case.  Jones felt he had a pretty good reason for refusing:  he’d been appointed to represent the defendant only the day before the trial.  Plough was unmoved, and locked him up for five hours, subsequently fining him $100.  Jones’ lawyer announced that they’d be taking an appeal to the 11th District.  It turns out that this is pretty much a common practice for Judge Plough.

Well, here’s some good news for Mr. Jones and his lawyer:  the 11th District apparently doesn’t think too much of Judge Plough’s methods, either.   A couple of weeks ago, in State v. Diroll, they reversed a conviction in a domestic violence case where Plough had done something similar.  Not only did they hold he had abused his discretion in refusing to grant a continuance, but it found the facts didn’t support the conviction, and ordered Plough to enter an acquittal.  (In case you’re wondering, Plough’s name is never mentioned in the opinion; I went to the Portage County online docket and tracked down the case, and found that it was indeed Plough’s.)  

Plough’s not too popular with his peers, either; as this article indicates, one judge has filed a complaint against Plough, alleging that he “intimidates defendants; abuses defendants’ rights to a speedy trial; issues inappropriate sentences; keeps incomplete or inaccurate records of trials; and” – perhaps the most damning — “took personal calls while on the bench during at least one jury trial.”  The horror… the horror…

While Plough’s actions justificably engendered a lot of criticism, it was handled in the customary manner:  the state and national criminal defense bars got into the act, issuing statements criticizing Plough, but in fairly temperate terms.  Down in Florida, it seems they had a similar situation:  one of the local judges by the name of Carol Aleman had adopted a policy of setting trial dates within a week or two of arraignment.  These were major felony cases, as opposed to the simple misdemeanor cases Plough was handling.  Apparently, Aleman’s purpose was to present defense counsel with the Hobbesian choice of going forward with a trial for which he is certain to be unprepared, or requesting a continuance and thereby waiving his client’s speedy trial rights. 

The defense lawyers down there have their own blog, and the judge’s actions were the subject of several posts, in language not normally found in polite legal circles, as this excerpt from one post shows:

As my case was on recall for 2 hours, I watched this seemingly mentally ill judge condescend each previous attorney.  I had my argument ready.  Prior to being placed on recall, I first approached the podium and noted that her question to me: “trial or continuance” placed my client in a position of having to decide b/t his rt to a speedy trial & his right to explore discovery.  Nonetheless, almost 2 hours later, my [case] was finally recalled:
 
ME:  “Judge (not your honor b/c there’s nothing honorable about that malcontent) … there seems to be a mistake in this case.”

EVIL, UNFAIR WITCH (“hereinafter “EUW”):  “and what is that?”

Not surprisingly, that excerpt bought the author a disciplinary complaint several months later, for the “disrespect toward the tribunal” provision of the code of conduct. 

As I’d pointed out several months ago, there’s a question of whether those regulations can survive vagueness challenges under the First Amendment; at least one Federal court has found they can’t.  I’ll go with that.  I can describe the president of the United States in the most unflattering, degrading terms possible.  (And have, as my officemates will tell you.)  I can’t say the same thing about some judge?

But it’s not going to reach the level of the Florida defense lawyers’ blog.  I mean, come on, guys:  “EVIL, UNFAIR WITCH”?  “Mentally ill”?  Was high school that much fun that you have to relive it through your prose?

Every now and then doing this blog makes me feel dumb.  I like to think of myself as fairly knowledgeable about search and seizure law, but last week I’m preparing the case update and I run across State v. Blevins, a case out of the 3rd District on anticipatory search warrants. 

On what?  (keep reading…)

Apparently, opinion-writing took second place to some hard partying in the courthouses across the state.  The Columbus Gang handed down an affirmance in a death penalty case, and issued one other case announcement, and there’s fairly slim pickings in the court of appeals, too.  The Nine Robed Ones in DC decided to accept the case involving whether the death penalty can be imposed for child rape, and they’ll kick off the arguments on Monday with one on whether lethal injection is cruel and unusual punishment.

So, let’s get to it:  (keep reading…)

The state sends blood samples out to the Bureau of Criminal Investigation – Ohio’s counterpart to CSI – for DNA analysis.  The tests determine that the victim’s blood is on the defendant’s shirt, and based largely on those results, the defendant is convicted of aggravated murder.  One problem:  the analyst who conducted the test is on maternity leave at the time of trial, so the prosecutor has another analyst testify, based upon his review of her report.

That wouldn’t have been a problem five years ago: the original analyst’s report would have qualified under the “business record” exception for hearsay.  But in 2004, the US Supreme Court held in Crawford v. Washington that “testimonial” statements could not be admitted at trial without violating the defendant’s right to confront witnesses, even if the statement qualified under the hearsay rules.  In 2006, in State v. Stahl, the Ohio Supreme Court defined a testimonial statement as “one made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”  The original analyst certainly would have made her report in the belief that it would be available for use at trial;  the introduction of that report by someone who hadn’t prepared it would thus clearly run afoul of Crawford and Stahl.

Or not, the Supreme Court held last week in State v. Crager.  Relying chiefly on its decision in State v. Craig, where it had permitted testimony regarding an autopsy from someone other than the person who performed it, and a California Supreme Court case on the admission of DNA evidence under circumstances similar to that in Crager, it reversed the 3rd District’s decision holding that such evidence was testimonial and thus barred by Crawford.

The 3rd District had certified its result based upon a conflict with another opinion out of the 6th District, and that may have been a significant factor in the outcome of Crager.  The 6th District decision, State v. Cook, had dealt with the admission of breathalyzer test results:  the state had introduced a packet of documents to show that the breathalyzer had been properly tested, and that the officer performing the test was certified to do so.  The court held that was permissible under Crawford, as long as the officer who actually conducted the test testified at trial.  It would have been difficult to affirm both Crager and Cook, and the Supreme Court wasn’t about to require everybody who calibrated a breathalyzer to show up at trial, so it’s not going to require the person who actually performed the DNA analysis to show up, either.

The decision is accordingly broad, and quite possibly too much so:  the syllabus flatly states that “records of scientific tests are not ‘testimonial’ under Crawford v. Washington.“  The opinion itself concedes that other courts have come to the opposite conclusion, and as the dissent points out, the majority’s reliance on Craig, at least, is arguably misplaced:  the coroner is an agency wholly independent of the prosecutor’s office, and the obligation to perform an autopsy is imposed by statute, and thus outside the definition of a statement made “with the expectation that it would be used at trial.”

Central to the outcome is the Court’s apparent belief that it really doesn’t matter whether the defense gets to cross-examine the person who actually did the test or someone who’s merely knowledgeable about the process and read the test results.  This is apparently premised on the idea that “BCI maintains its independence to objectively test and analyze the samples it receives.”  This notion reaches its apogee in visiting Judge Kline’s concurrence, which attacks the appellate court’s conclusion that “the fact that these [DNA] reports are prepared solely for prosecution makes them testimonial.”  According to Judge Kline,

absent evidence to the contrary, it should be presumed that the primary purpose behind any county prosecutor’s request for DNA analysis is to seek justice, not merely to prosecute or convict a defendant. . . the prosecutor asked BCI for the DNA analysis through glasses of justice, not glasses of conviction.

There’s no question that the world would be a better place if it were the one imagined by Judge Kline, but it’s not; as this article indicates, there’s no shortage of crime labs or prosecutors, or both, working to ensure that the question of innocence takes a back seat to the pursuit of convictions:

A 2002 audit of the crime lab in Houston, Texas, found that experts may have given “false and scientifically unsound” testimony in thousands of criminal cases. Subsequent reports showed that crime lab employees often tailored their tests to fit police theories about how a crime was committed. . . A 2005 audit found critical errors in the state of Virginia’s crime lab, considered one of the best in the country. The audit found that senior-level experts in the lab were too often persuaded by political pressure to secure convictions.

Perhaps the highest priority of a criminal justice system in a democracy is ensuring that innocent people aren’t convicted.  Making an a priori assumption that the prosecution has that goal foremost in mind isn’t the best way of achieving it.